Is the principal liable for damages caused by the agent to third parties?
In the agency relationship, it may happen that the agent, in the performance of his duties, causes damage to a third party; in such a case, the question arises as to whether the principal may be held liable for the damage caused to the third party and, therefore, be held indirectly liable formerly Article 2049 of the Civil Code for damage caused to the third party. This rule provides that:
"masters and principals are liable for damages caused by the wrongful act of their servants and committed in the performance of their duties."
From a reading of that article, it is understood that the constituent elements of the liability of the "master and principal" are:
- the existence of a wrongdoing which resulted in damage to a third party;
- the fact that the damage was caused by a supervisor (which is not necessarily an employee relationship);
- that the damage was caused (or otherwise facilitated) in the performance of duties to which the supervisor had been assigned.[1]
According to case law, liability under Article 2049 of the Civil Code is of an 'objective nature'.[2] and this implies that the principals not may propose any clearance test of their liability, with the consequence that they are indirectly liable for the actions of others, irrespective of whether they were at fault in the choice or supervision of the supervisor.[3] In short, there are two persons (the principal and the principal), distinct from each other, responsible for the damage, even if only one of them was the author of the harmful act.
The classic example of the application of this rule is the employmentIn such a case, the principal is liable for the wrongful act committed by its employee, by virtue of the assignment conferred upon him. In any event, it is important to note that majority case law has long held that for the purposes of the application of liability formerly Article 2049 of the Civil Code, it is sufficient that the person in charge acts on behalf of the principal by virtue of a subordination bond understood in a broad sense.[4] In fact, we read that:
"In order for the liability regime enshrined in Article 2049 of the Civil Code to operate, it is sufficient that the perpetrator of the tort is included, even if temporarily or occasionally, in thebusiness organisation and acted, in this context, on behalf of and under the supervision of the entrepreneur."
Given that the agency relationship is a relationship of the very nature parasubordinate and, as such, potentially qualifying as employment of subordination 'in the broad sense', the question arises as to whether liability under Article 2049 of the Civil Code also applies to this type of contract.
According to an authoritative doctrine[5] the provisions of Article 2049 of the Civil Code cannot be applied to the agency relationship, since that institution presupposes for its application a relationship of dependence and subordination, even if of a merely occasional or temporary nature; that relationship of dependence is not to be found in a contractual situation such as the agency contract, the agent being configured rather as an independent collaborator of the principal.
In contrast, some case law[6] held that the principal is vicariously liable for the agent's wrongful act if the agent acts in the capacity of representative. On the point:
"the activity of the agent, who is an agent of the principal, constitutes a source of indirect liability of the principal, within the meaning of Article 2049 of the Civil Code, only when the agent has availed itself of its capacity as representative to commit the tort. "
This orientation expands the limits of the principal's liability, even in cases where the agent (imp! always acting as a representative), acts culpably with ways other than those given to him, or even beyond the limits given to him.[7] A fundamental point is the fact that the person in charge, by exercising the task to which he is assigned, albeit in a manner different from the principal's instructions or even beyond the limits thereof, has caused the unjust damage to others.[8]
We read a more recent orientation of the Supreme Court, which does not exclude the applicability of Article 2049 of the Civil Code even where the agent has acted without any power of representation:[9]
"For the purposes of joint and several liability under Article 2049 of the Civil Code of the principal, a relationship of necessary occasionality between the harmful act and the duties performed by the principal is sufficient, which exists when the wrongful act was performed by exploiting the duties performed by the principal, even if he acted beyond the limits of his duties and even if he violated the obligations imposed on him."
The judgment goes on to state that:
"It is not necessary for there to be a stable employment relationship between the two parties, it being sufficient that the perpetrator of the tort/delict is linked to the principal even only temporarily or occasionally and that the task performed has led to a situation that facilitates or makes possible the tort/delict and the harmful event.
"In particular, that of the principal is a liabilitỳ of an objective nature inspired by rules of social solidaritỳ, intended to attribute - according to the theory of the distribution of costs and profits - the burden of risk to the one who avails himself of the work of third parties. [...] In this perspective, civil jurisprudence, in more recent times, has come to recognise the responsibilitỳ of the principal for the illegal activity carried out by the'agent even without power of representation, requiring in that sense only that the commission of the offence was facilitated or made possible by the tasks entrusted to it and that the principal had the opportunity to exercise powers of direction and supervision'.
If one follows this last jurisprudential orientation, it may be said that the agency contract is not, per se, outside the scope of Art. 2049 of the Civil Code, not even if its content is that of a mandate without representation.
As noted above, liability under Article 2049 of the Civil Code is an objective liability, with the consequence that it is not conferred on the principal the possibility of providing exculpatory evidence based on the absence of fault in the principal's choice or supervision of the principal; it follows that the principal may defend its position, demonstrating only that the prerequisites for the application of the rule under examination do not exist, and therefore prove:
- that there is no preposition relationship with the offending party;
- that there is no causal link between the tasks entrusted and the commission of the offence;
- the absence of the tort.
On the contrary it will be burden of the damaged demonstrate that:
- a wrongful act causing damage has occurred;
- the supervisory relationship between principal and agent;
- the event giving rise to the damage is causally connected, or at least necessarily occasional, with the performance of the duties for which he was employed.
Finally, we briefly point out that in principle the agent can be held liable under Article 2049 of the Civil Code for the actions of a sub-agentIf the court's investigation establishes that the sub-agent is effectively integrated into the organisation of the agent's undertaking, the agent is entitled to supervise and control the sub-agent.[10]
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[1] Cass. Civ. 2002 No. 26503; on this point see Gualtierotti, La responsabilità del preponente per fatto illecito dell'agente, in Agents & Sales Representatives - No 4/2014.
[2] Cass. Civ. 2001 no. 8381; Cass. Civ. 2000 no. 3536.
[3] On this point see Commentary Civil Code, 2009, Art. 2049, p. 84 ff. COMPORTS, GIUFFRE PUBLISHER
[4] On this point, see Commentario breve al codice civile, CIAN TRABUCCHI, art. 2049, CEDAM, 2016.
[5] BALDI - VENEZIA, In contratto di agenzia, p. 306 ff., Giuffrè Editore.
[6] Cass. Civ. 1995 No. 12945
[7] Cass. Civ. 2014, no. 23448 "The principle of the appearance of entitlement, through which the innocent reliance of a third party who has contracted with a person who appeared legitimately entitled to bind others is protected, is operative on the twofold condition that there exists the good faith of the person invoking its application and at least culpable conduct on the part of the person who gave rise to the situation of appearance. (Cassa con rinvio, App. Bologna, 21/01/2011)." In the contrary sense BALDI - VENEZIA, In Contratto di agenzia, p. 306 ff., Giuffrè Editore. "It is worth noting, however, that since pursuant to Art. 13939 of the Civil Code the third party who contracts with the agent may always require the agent to justify his powers of representation, since such powers cannot be presumed, the third party cannot invoke a liability on the part of the principal if the agent exceeds the limits of the powers conferred on him, or acts in reliance on powers of representation that he does not have.
[8] On this point see Commented Civil Code, Plurisdata, Art. 2049 Civil Code, 2014 Wolters Kluwer Italia Srl.
[9] Cass. Pen. 2016, n. 7124.
[10] Cass. Civ. 2014 no. 23448; Cass. Civ. 2012 no. 7634.
